US v. Winter, Crim. No. 92-10008-H.

• Decision Date: 19 July 1993
• Docket Number: Crim. No. 92-10008-H.
• Citation: 826 F. Supp. 33
• Parties: UNITED STATES of America, v. Howard T. WINTER, et al.
• Court: U.S. District Court — District of Massachusetts

826 F. Supp. 33

UNITED STATES of America, v. Howard T. WINTER, et al.

Crim. No. 92-10008-H.

United States District Court, D. Massachusetts.

June 4, 1993.

Memorandum and Order on Reconsideration July 19, 1993.

Paul Markham, Boston, MA, for defendant Schiavo.

George W. Vien, U.S. Attorney's Office, OCDETF Div., Boston, MA, for U.S.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

This action comes before the Court on Defendant Kenneth Schiavo's Motion to Suppress $12,500 in United States currency and other items seized from him on November 4, 1991. The Government has opposed the Motion on the ground that these items were properly seized pursuant to a valid "Terry-type stop and frisk."

The seizure at issue in this case was the result of an investigation by federal agents and State Police into the alleged cocaine trafficking activities of the Defendants Howard Winter, Gennaro Farina and Kenneth Schiavo. The police had enlisted the aid of a cooperating individual (CI) to purchase cocaine from the Defendants. On the morning of August 1, 1991, this CI, wearing a recording device, was driving with Winter when the CI indicated that he wanted to purchase two kilograms of cocaine that day. After Winter placed a phone call at a public phone booth, the CI and Winter drove to a parking lot in Brighton, Massachusetts, where Schiavo met them soon thereafter. Schiavo and Winter had a brief conversation in the parking lot, walked to some nearby telephones and then returned to their cars. Schiavo drove away in his car, while Winter left with the CI.

Winter and the CI then drove to a donut shop in West Upton where Winter, upon making a phone call, informed the CI that the cocaine would be delivered later that day. At noon, the CI and Winter met at the Golden Spoon restaurant in Hopkinton, where Farina arrived with a kilogram of cocaine that was given to the CI. The next evening, the CI met with Winter to deliver him $27,000 in payment for the cocaine. Once Winter had received the money and put it in his car, he used a nearby public phone. Telephone Company records indicate that he placed a call to Schiavo's residence.

On October 31, 1991, the CI picked up Winter and asked to purchase another kilogram of cocaine. Winter placed two calls from the CI's car phone. Telephone records show that the calls were placed to Schiavo's residence. The CI and Winter then drove to the Dunkin Donuts in West Medford, where Winter met with Schiavo for about five minutes and subsequently confirmed to the CI that the transaction would take place. Winter eventually delivered the kilogram of cocaine to the CI's house on November 1, 1991.

On November 4, 1991, the CI met with Winter at a restaurant in Sutton, and delivered $9,000 in serialized¹ purchase money as partial payment for the November 1 delivery of cocaine. After Winter left the delivery point, surveillance agents followed him to a bar in Webster, then to his house in Worcester, then to another bar in Worcester, and finally to the Chandlery Pub, a restaurant in Chelsea. He arrived at this restaurant more than two hours after having received the money from the CI. Other surveillance agents had followed Schiavo to the same restaurant earlier in the day and his car was still parked outside when Winter arrived. Winter went inside the restaurant, remained inside for approximately twenty minutes, then exited and drove away. About five minutes later, Schiavo came out of the restaurant, entered his car, and drove away as well.

Trooper Thomas Duffy of the Massachusetts State Police, who had been keeping surveillance on Winter that morning, followed Schiavo from the Chandlery, eventually signalling him to stop on Broadway Street in Somerville, Massachusetts. Schiavo pulled into the parking lot of a nearby supermarket, parked the car and got out. Duffy approached Schiavo and asked him for his driver's license, which he produced. As part of a ruse to purportedly conceal the larger on-going investigation, Duffy identified himself as "Trooper Manning" and indicated that he was stopping Schiavo because he had seen him repeatedly hitting his brakes. Duffy did not, however, actually cite Schiavo for a motor vehicle violation nor did he place him under arrest for any offense.

While standing next to Schiavo, Duffy noticed a large bulge inside Schiavo's jacket, near the left side of his chest, and several times asked him if he had any weapons on him. Schiavo, in turn, repeatedly denied being armed. Duffy, acting without a search warrant, then conducted a limited pat frisk of Schiavo. In particular, he frisked about the bulge in his jacket and asked questions about it. After Schiavo stated it was a bag and again denied having any weapons on him, Duffy firmly instructed Schiavo to raise his hands and asked him what was inside the bag. When Schiavo responded, "Money," Duffy then took the brown bag from inside the jacket, opened it, looked inside and saw a white plastic bag containing $6,500 and matching the bag that the police had given the CI. He then took custody of this money, the bags and other amounts subsequently retrieved from Schiavo's pants pockets. Although the police had initially given the CI only $9,000 in serialized currency, Duffy seized the entire $12,500 he found on Schiavo because he was uncertain as to which bills constituted the serialized money. No search was made of Schiavo's vehicle. To allegedly further the investigation, Duffy then let Schiavo go without arresting him.

In justifying the search, the Government concedes that the search was not conducted pursuant to a search warrant nor as a search incident to arrest. It further acknowledges that the seizure was not incident to a search of the vehicle and does not contend it was consensual. Instead, the Government predicates the seizure upon a proper Terry stop and frisk. Although the Government does not rely upon probable cause for the search, I note in passing that Duffy did not have probable cause to believe that the money was in Schiavo's possession. More than two hours had passed between the CI's delivery of the money to Winter and Winter's arrival at the Chandlery. During this time, Winter stopped at several places, at any one of which he could have left the money. There was therefore not even probable cause to believe that Winter had the money in his possession when he entered the Chandlery. Further, no one ever saw Winter deliver any money to Schiavo at the Chandlery. Duffy conceded that he had only had a "hunch" that Schiavo had the serialized money when he left the Chandlery.² I consequently find that prior to stopping Schiavo, Duffy's hunch did not rise to probable cause to believe that Schiavo possessed the serialized currency. Although Duffy did not conduct a search of Schiavo's vehicle, I simply note that the evidence indicates that he would not, therefore, have had probable cause to support a warrantless search of Schiavo's vehicle. See Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925).

Because the Government predicates its seizure upon an appropriate stop and frisk search, we must engage in a two-step examination pursuant to Terry v. Ohio to assess the validity of the search. See 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see also Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984) (routine traffic stop analogous to pedestrian "Terry stop"). We must consider first, whether the stop was justified at its inception; and second, whether the action taken was reasonably related in scope to the circumstances that justified the intrusion in the first place. See id.; United States v. Stanley, 915 F.2d 54, 55 (1st Cir.1990). An investigatory stop by police officers is justified where the officers "have reasonable grounds to believe that the person detained was, is, or will be engaged in criminal activity." United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). In this case, Schiavo's conduct in connection with this investigation was sufficient to give Duffy reasonable suspicion that he was involved in criminal activity. On the occasions that the CI told Winter that he wanted to purchase cocaine, Winter would immediately call Schiavo and meet with him. No one ever saw Schiavo pass drugs to Winter, but in each case, the cocaine was delivered soon after Winter had met with Schiavo. On the day of the search, police officers anticipated that Winter would deliver the money to Schiavo upon receiving it from the CI. Hours after the money was delivered to Winter, he went to the same restaurant as Schiavo and left only twenty minutes after arriving there. In light of knowledge gained by Duffy through the investigation and the conduct of Winter and Schiavo on the day of the search, Duffy had reasonable suspicion to believe that Schiavo had been involved in the sale of the cocaine to the CI. Therefore, even though Duffy lacked probable cause to believe that Schiavo possessed the money, he nonetheless had reasonable suspicion of his involvement in criminal activity sufficient to justify an investigatory stop.

Having determined that the investigatory stop was justified, we next consider whether the action taken by Duffy in searching Schiavo was reasonably related in scope to the circumstances...